A wind energy generator retains ownership of banked energy generated prior to the sale of the windmill, and the terms of the wheeling agreement do not preclude its use.

ORDER

1. The dispute between the parties is required to be explained, but it must be stated that the petitioner ensures that its case is not easily understood on a plain reading of the affidavit. Therefore, facts which are stated and admitted on either side forms the basis of this narration. It is as below:

a) The petitioner, herein was a wind energy-generator through its Windmill installed in Tirunelveli District, bearing WEG NO:4303. It was also 100% captive consumer of the energy that it generated. At the consumption end, it had a High Tension Supply Connection in HTSC 193.

b) For the transmission of electricity that it generated, petitioner had entered into a wheeling agreement with the TANGEDCO, in terms of which whatever energy that was generated but not utilised will remain in the banking account of the electricity generator, and can be carried forward for future utilisation in the subsequent months, with a rider that if there is any surplus energy still available in the banking account of the energy generator as at the end of the financial year (31^st March of every year) it should be sold to TANGEDCO, not at the prevailing tariff but at 75% of the tariff prescribed. (In the process, TANGEDCO will make a gain of 25% per unit of electricity). There is no dispute on this aspect between the parties.

c) The issue arose when on 14.09.2017 the petitioner sold its Windmill referred to above to a third party. And as on 13.09.2017, the petitioner had to its credit a certain units of electricity (which runs to few lakhs units) in its banking account. It was not the end of the financial year yet. The petitioner had used the electricity in its banking account for its HTSC 193. And the TANGEDCO while raising its monthly bills for the consumption of electricity on the petitioner had adjusted what was actually consumed by the petitioner against the energy that was available in its banking account.

d) Be that as it may, the Superintending Engineer of TANGEDCO, vide his proceedings dated 10.07.2020 had raised a demand for Rs.1,29,47,301/- alleging that adjustment given for consumption of energy by the petitioner against the unutilized banked energy that was in its banking-account till 13.09.2017, after the sale of its windmill was impermissible, and that it should have been sold to the TANGEDCO at the purchase rate as per the terms of the Agreement, i.e @ 75% the tariff.

e) Even though this demand notice refers to a Circular of the Chief Financial Controller of the TANGEDCO, dated 01.06.2016, it is apparent it is made more in tune with Circular dated 31.03.2017.

f) Petitioner responded to it with its reply dated 24.07.2020, where it emphasised that the energy in the banking account upto 12.09.2017 had been used, and vide proceedings of the Chief Engineer dated 19.07.2016 adjustments had also been given, and that the Circular of 31.03.2017 was directed to be kept in abeyance by the Madurai Bench of this Court in W.P.(MD) 9320 of 2017. The petitioner informed that TANGEDCO appears to be confusing the rule applicable to Group Captive consumers with 100% captive consumers.

g) The petitioner then was given a hearing on the issue, during which it also gave its written submissions dated 15.10.2020 where it broadly reiterated the earlier positioned it assumed.

h) However, rejecting the petitioner's submissions, the 4^th respondent came out with its impugned proceedings dated 20.11.2020. In this proceedings, the petitioner was informed that after the termination of ownership over the windmill, the surplus energy generated and remained as banked energy canno